Citation Nr: 9830406
Decision Date: 10/13/98 Archive Date: 10/21/98
DOCKET NO. 96-29 645 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wilmington,
Delaware
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James J. Dunphy, Counsel
INTRODUCTION
The veteran served on active duty from June 1963 to April
1967.
This matter comes before the Board of Veterans’ Appeal
(Board) on appeal from a July 1994 rating decision, in which
the veteran sought entitlement to service connection for
PTSD.
The Board notes that in the rating action and subsequent
statement of the case (SOC), the issue was considered
entitlement to service connection for PTSD and depression.
However, in his VA Form 1-9, the veteran limited his appeal
to consideration of the issue of entitlement to service
connection for PTSD.
At his formal hearing before a member of the Board, the
veteran presented additional evidence, after executing an
appropriate waiver of initial consideration by the Department
of Veterans Affairs (VA) Regional Office (RO).
REMAND
The veteran contends that service connection is warranted for
PTSD. He notes in support of this contention that he has
been treated on numerous occasions for this disorder. In
particular, he notes continuing therapy at a VA medical
facility, reports of treatment by private physicians, and
results of a VA compensation examination. These examinations
and treatment reports show diagnoses of PTSD.
Service connection for PTSD requires evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed in-service stressor actually
occurred, and a link, established by medical evidence,
between current symptomatology and the claimed in-service
stressor. 38 C.F.R. § 3.304(f) (1997); see also Cohen v.
Brown, 10 Vet. App. 128, 136 (1997), citing Moreau v. Brown,
9 Vet. App. 389, 394-95 (1996).
The veteran has contended, in his multiple statements and in
his testimony before the Board, that he was not directly
engaged in combat, and a review of the veteran’s service
records does not indicate that he was awarded any medals
consistent with 38 C.F.R. § 3.304 (f). However, he does
indicate that he was exposed to many stressful incidents
while in service. He indicates that his unit came under
mortar fire along with small arms fire. Moreover, he relates
an incident when a Montagnard village was attacked. In
retaliation, a number of Viet Cong soldiers were killed and
their heads placed on stakes.
The determination of the proper diagnosis for a psychiatric
disability, and the decision as to whether these stressors
would support a diagnosis of PTSD are medical questions, and
hence outside of the expertise of the Board. However, the
issue of verification of stressors is the responsibility of
and within the expertise of the Board and the VA.
The Board notes that the information provided by the veteran
has not been presented to the United States Armed Services
Center for Research of Unit Records (USASCRUR) for review.
No action by the Board on the issue of verification of
stressors is therefore currently appropriate.
Accordingly, the case is remanded to the RO for the following
actions:
1. The RO should ask the veteran to
provide a detailed statement, providing
information with regard to the dates and
locations of the claimed incidents, names
of the units or involved, and the names
of other persons involved. This
information should be as specific as
possible. In particular, the veteran
should be asked to provide as specific as
possible the dates his base came under
fire and the date of the incident at the
Montagnard village. In requesting these
details from the veteran, he should be
advised that it is vitally important that
he furnish the VA with this information,
as, without such details, an adequate
search for verifying information cannot
be conducted.
2. After the veteran provides this
information, or, if after a reasonable
period of time he fails to provide such
information, the RO should review the
claims file and compile a list of the
claimed stressors. The RO should submit
this list, along with any information the
veteran has provided and any
documentation (such as his service
personnel records) from the claims folder
to the USASCRUR, 7798 Cissna Road, Suite
101, Springfield VA 22150-3197. The
USASCRUR should attempt to verify if the
veteran engaged in combat, verify his
claimed non-combat stressors, and provide
any information to enable the RO to make
a determination as to whether the veteran
engaged in combat or whether his claimed
stressors actually occurred. Also, the
USASCRUR should obtain primary source
information, such as unit histories or
operational reports.
3. Following the above, the RO must make
a specific determination as to whether
the veteran was exposed to a stressor or
stressors during active service, and, if
so, the nature of the stressors. The RO
must also make a specific finding as to
whether he veteran engaged in combat.
See Zarycki v. Brown, 6 Vet. App. 91
(1993). If the RO determines that the
record establishes the existence of a
stressor or stressors, the RO must
specifically identify the stressors
established by the record.
4. If, and only if, the RO determines
that the record establishes the existence
of a stressor or stressors, through
combat participation or otherwise, the
veteran should be afforded an examination
by a psychiatrist to determine the
presence of PTSD. The RO should specify
for the examiner the stressor or
stressors that the RO determined are
established by the record, and the
examiner is to be instructed that only
those events can be considered for the
purpose of determining whether the
veteran was exposed to a stressor in
service. The examination report should
include a detailed account of all
pathology found to be present. The
examination report should include a
complete rationale for all opinions
expressed. All necessary special studies
or tests are to accomplished. In
addition, the examiner should
specifically address the following:
a) Whether the stressors verified by the
RO were sufficient to produce PTSD
b) Whether the veteran meets the
diagnostic criteria for PTSD under the
American Psychiatric Association’s
Diagnostic and Statistical Manual of
Mental Disorders (DSM) and
c) Whether there is a link between the
current symptoms and the stressor or
stressors verified by the RO.
The claims folder must be made available
to the examiner prior to the examination.
5. Thereafter, the RO should then review
the record to insure that all actions
requested above have been completed. The
RO should then readjudicate the claim for
service connection for PTSD, under the
guidance found in Cohen v. Brown, 10 Vet.
App. 128 (1997).
When the requested development is completed, if the benefit
sought is not granted, the veteran and representative should
be provided with an appropriate supplemental statement of the
case. They should also be given a reasonable period to
respond. The case should then be returned to the Board for
further appellate consideration.
The purposes of this remand are to obtain additional
information and to assist the veteran in the development of
the claim. No inference should be drawn regarding the merits
of the claim, and no action is required of the veteran until
further notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Deborah W. Singleton
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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